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The next champion of LGBT workplace rights?
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The next champion of LGBT workplace rights?
February 15, 2012
By Chris Johnson
The Obama administration official who would be responsible for enforcing a proposed federal ban on discrimination against LGBT workers by federal contractors boasts a long record of advocating for LGBT rights.
Patricia Shiu heads the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP), which enforces contractual promises of equal employment opportunity for companies doing business with the federal government.
If, as advocates have been pushing him to do, President Obama issues an executive order requiring federal contractors to adopt non-discrimination policies inclusive of sexual orientation and gender identity, Shiu would be responsible for ensuring companies live up to that obligation.
Federal contractors that discriminate against LGBT employees would have to answer to Shiu – and potentially have to pay back wages and reinstate workers fired for discriminatory reasons.
Tico Almeida, president of Freedom to Work and one of the chief advocates calling for the order, called Shiu a “smart and talented attorney” and said she’s “demonstrated throughout her career a real passion and commitment to enforcing civil rights laws.”
“As the executive order has advanced through the slow bureaucratic process over the course of the last year, I have felt reassured knowing that we have strong straight allies like Director Shiu on the inside advocating for workplace fairness for LGBT Americans,” Almeida said. “She knows the legal issues backwards and forwards, in part because she has real world experience at the Employment Law Center representing LGBT Americans who have faced workplace discrimination just because of who they are or whom they love.”
Because the measure is similar in its goal to the Employment Non-Discrimination Act, the directive has sometimes been referred to as the “ENDA” executive order, although the order would be more limited in scope because it only affects federal contractors. Multiple sources have said the Labor and Justice Departments have cleared such a measure, but the White House hasn’t said whether Obama will issue the directive.
Almeida said he met with staffers from OFCCP to advocate for the executive order, and had two meetings with Shiu herself. Almeida wouldn’t comment on the substance of the meetings, and Shiu declined an interview for this article.
If Obama issues the order, Shiu would be responsible for drafting and implementing regulations, putting them through a 90-day public comment period, revising the regulations and then publishing final rules.
“That could take six, eight, 10 or even 12 months, which is why it is so critical that President Obama get the process started by signing the executive order as soon as possible,” Almeida said.
No federal law protects LGBT people from discrimination in the workplace, but observers say Shiu has distinguished herself by protecting civil rights for other groups using as tools protections already in place since she took over at OFCCP in 2009.
Executive Order 11246, signed in 1965 by President Johnson, prohibits federal contractors from discriminating on the basis of race, color, religion, sex or national origin.
Several statutes also prevent companies doing business with the federal government from discriminating against employees. Section 503 of the Rehabilitation Act of 1973 prohibits job bias based on disability and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 prohibits job bias based on veteran status.
OFCCP’s work is focused on compliance evaluations of contractors who are scheduled for reviews, when compliance officers check to make sure contractors are meeting these obligations. According to the Labor Department, Shiu’s office investigated 356 complaints filed under Executive Order 11246, Section 503 of the Rehabilitation Act of 1973 and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974.
Under the Obama administration, OFCCP has recovered more than $30 million in financial remedies on behalf of nearly 50,000 victims of discrimination. In the past three years, the agency has evaluated more than 12,000 businesses that employ almost 5 million workers. In addition to back wages, interest and benefits, OFCCP has negotiated more than 4,800 potential job offers for workers who have been illegally subjected to discrimination.
Nancy Zirkin, executive vice president for policy at the Leadership Conference on Civil and Human Rights, had high praise for Shiu’s work in enforcing non-discrimination rules with federal contractors.
“Overall, her commitment to reinvigorate and ramp up the enforcement of the agency has been amazing, which is not surprising because she has dedicated her whole career to protecting workers and promoting diversity and enforcing the law,” Zirkin said. “In her previous role, she was always very well respected in the legal and policy advocacy community.”
Zirkin said the Employment Task Force of the Leadership Conference on Civil and Human Rights has worked with her on the National Equal Pay Enforcement Task Force, which was charged with cracking down on violations of equal pay laws affecting women.
“We think she has been throughout her career and continues to be a stellar point for the civil rights community,” Zirkin said.
If Obama were to issue the ENDA executive order, Zirkin predicted that Shiu would be an effective enforcer of that directive.
“Based on her entire life’s work, she would implement and enforce it, and as I said in the beginning, she has made a demonstrated commitment to reinvigorate and ramp up enforcement at the agency,” Zirkin said.
In June, Shiu secured one such major financial reward from a pharmaceutical giant and federal contractor as the result of allegations of gender discrimination in violation of Executive Order 11246.
AstraZeneca, among the largest pharmaceutical companies in the world, agreed to pay $250,000 to 124 women subjected to discrimination while working at the corporation’s Philadelphia Business Center in Wayne, Pa. The action resolved a lawsuit filed by the Labor Department in May 2010 alleging the company discriminated against female sales specialists by paying them salaries that were, on average, $1,700 less than their male co-workers.
OFCCP conducted a scheduled compliance review of the business center in 2002 and found AstraZeneca had violated Executive Order 11246 by failing to meet its obligations as a federal contractor to ensure employees were paid fairly. According to the Labor Department, the company holds a contract valued at more than $2 billion with the Department of Veterans Affairs to provide pharmaceutical products to hospitals and medical centers throughout the country.
Shiu is credited with being a stalwart supporter of civil rights and LGBT rights even before she came to the Labor Department. Prior to joining the Obama administration, Shiu was an attorney for 26 years at the San Francisco-based Legal Aid Society Employment Law Center and worked on employment discrimination cases, including LGBT-related cases.
Elizabeth Kristen, current director of the Employment Law Center’s Gender Equity and LGBT Rights Program, said Shiu was her mentor at the organization before she left and “an incredible champion for civil rights.”
“She is a tough litigator and she’s a passionate advocate and she’s incredibly smart and she really when she was here just went to bat for her clients,” Kristen said.
Kristen said Shiu worked on cases at the Legal Aid Society Employment Law Center affecting LGBT employees and said she “fully gets the issues and is a staunch, staunch ally to the LGBT community.” The Law Center wouldn’t reveal information about these cases, citing confidentiality agreements.
A lesbian who married her spouse in San Francisco in 2008, Kristen said Shiu in addition to her legal work was outspoken against Proposition 8, the ballot measure that ultimately eliminated marriage rights for gay couples in California.
“Many of our straight allies were working to get President Obama elected, which is great and wonderful but some of us also were fighting Prop 8 on Election Day, and Pat was also with us fighting Prop 8,” Kristen said.
Kristen added Shiu was involved in a Legal Aid Society Employment Law Center decision to gross up the pay for employees in same-sex marriages to offset the tax inequities faced by these individuals. Because of the Defense of Marriage Act, individuals in same-sex marriages have to pay a federal tax on health care benefits, unlike those in opposite-sex unions.
Should Obama issue the ENDA executive order, Kristen said Shiu “would do everything in her power to enforce it.”
“She would do everything she could to make sure that this order was fully effective because I know the rights of the LGBT community are near and dear to her heart,” Kristen said.